Roberts v. Kilpatrick , 5 Stew. & P. 96 ( 1833 )

SAFFOLD, J.

The.action was assumpsit, by Roberts, as indorsee of a promissory note, against. Kilpa-trick, as indorser. On demurrer to the plaintiff’s declaration, judgment was rendered in favor of the defendant. This is the cause assigned for error.

The question presented by the demurrer was, whether it was sufficient in charging the liability of the indorser, for the indorsee to allege, as an excuse for not having sued the maker to the first Cpurt, to which suit could have been brought, or at any other time ; or, of having made demand of payment, and given notice to the indorser, that the maker was absent from the County in which the note was made, all the time during which the suit should, otherwise, have been brought.

The averments of the amended declaration, are, that the note being due in October, 1830, previous to the June term of the County Court of said County, in the same year, the maker “ left the County aforesaid, and went beyond the jurisdiction of the County Court of the County aforesaid,” held at the June term, aforesaid; and that he, the drawer, had, ever since the time of'his departure as aforesaid, been, and still continued “ beyond the jurisdiction of the Court of the State aforesaid.”

It will be observed, that the Court * of the State aforesaid, can refer alone to the County Court, mentioned, and that, being beyond the jurisdiction of that Court, implies only that he was out of that County.

The statutes of 1828 and 1829, concerning the liability of indorsers, require that the maker shall, for all sums, exceeding fifty dollars, be sued to the first Court, to which suit could properly be brought, and shall be prosecuted to nulla Iona, before the in-dorser shall be liable. So much as is expressed, respecting the absence of the maker from his place of residence, is contained in the latter statute, and refers exclusively to sums not exceeding fifty dollars— cognizable before justices of the peace.

As respects the provisions for larger demands, cognizable in the Courts of record, it is true, the legislature must not be presumed to have intended impossibilities — to have required, as an indispensable-pre-requisite to the indorser’s liability, that the maker should be prosecuted to nulla bona, when, from his absence from the State, his absconding, or other cause, it was impossible, or impracticable to do so.— Yet, it is but a rational and liberal interpretation of the statute, that if the maker has a known residence in any part of the State, he should he sued there; and that to excuse the institution of the suit, a cause must exist similar to those which, at common law, will ex-, cuse the necessity of demand and notice. No sueli cause is charged to have existed here. The maker-may liave been in a different County, where he could ' conveniently have been sued, whether permanently located, or not.

Hence there does not appear in this case, the diligence which has been prescribed by statute, in lieu of the common law requisition of early demand of payment from the maker, and notice to the indor-ser, as was suggested to be necessary in the case of Cavanaugh et al. vs Tatum.^a

Tjje imanjmous opinion pf the Court is, that the judgment must be affirmed.

a 4 stew & orte.,204